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Bans on public funding to churches in 39 states could be undone depending on how the
court rules, Nanci Gonder, press secretary for the Missouri attorney general’s office,
told Bloomberg BNA by e-mail.

The high court might not schedule Trinity’s argument until next term if the state’s
legal stance changes after Missouri’s attorney general election next week, Allyson
N. Ho, a partner with Morgan, Lewis & Bockius LLP, Dallas, told Bloomberg BNA by e-mail.

The election could also result in a settlement and dismissal of the case, Ho, who
co-chairs Morgan Lewis’s appellate practice, said.

Both Trinity and Missouri argue that churches’
relationships with states could change significantly depending on the outcome here.

Long Wait

The parties have waited a long time for oral argument at the Supreme Court, and are
still waiting. Briefing finished in August.

The court agreed to hear the case in January, less than a month before Justice Antonin
Scalia died unexpectedly Feb. 13, leaving the court with eight justices. Evenly divided
decisions leave in place the decision below without setting binding precedent.

Election Issue

But matters of court staffing aside, the parties may have to wait even longer for
oral argument depending on the Nov. 8 election.

Missouri Attorney General and gubernatorial candidate Chris Koster (D) currently represents
the DNR, but will soon retire from the position.

Republican attorney general candidate Josh Hawley has taken the church’s side. He
filed an amicus brief in support of Trinity on behalf of a Pentecostal Christian denomination.

Even if Koster becomes governor, “The Attorney General has the sole authority to represent
the State in court,” the attorney general’s office’s Gonder said.

“If this case is not submitted to the Supreme Court before the administration change
on January 9, the next Attorney General, whoever it is, will be responsible for ensuring
that the State’s interests are represented as the case concludes,”
Gonder said.

If Hawley wins the election and still takes the church’s side, then Supreme Court
Justice Samuel A. Alito Jr., who oversees the Eighth Circuit, could “suggest someone
to the Court to appoint to defend the judgment below,” Morgan Lewis’s Ho said.

That “scenario would almost certainly require a new round of briefing, with argument
likely scheduled for next Term,” Ho said.

It’s also possible that the parties could settle, she said.

Safety Grant Denied

Trinity applied for state funding to resurface its affiliated pre-school and daycare’s
playground with tire scrap rubber, the church’s brief says.

The pre-school and daycare is a church “ministry,”
but its playground is open to “children from the community”
after hours, Trinity says.

It would be “unprecedented” to hold “that a state constitution violates the First
Amendment and the Equal Protection Clause if it bars the grant of public funds to
a church,” the Eighth Circuit said.

Founders, Firefighters

If the church wins, it will effectively undo bans on public funding to churches in
more than three-fourths of states, Daniel Mach, director of the American Civil Liberties
Union’s program on freedom of religion and belief, said at a panel discussion hosted
by the Alliance Defending Freedom, a Christian legal organization.

The ACLU filed an amicus brief supporting the state.

Preventing direct public cash grants to houses of worship is consistent with the vision
of the Founders—particularly James Madison—Mach said.

These bans actually benefit churches because it keeps them from fighting each other
over subsidies, Mach said.

It also helps protect churches from having to tailor their doctrine to appeal to the
government, in an attempt to receive more public funding, Mach said.

But ADF’s senior counsel David A. Cortman said that excluding churches merely because
they are churches is a “dangerous principle.”

If a government’s job is to promote the health, safety and welfare of its citizens,
that mission should apply to all citizens, Cortman said.

That principle allows public firefighters to put out fires at churches instead of
letting them burn, Cortman said.

Mach distinguished emergency services, saying they are universal entitlements, while
the grants here were available to a limited number of applicants.

Locke and Load

Both the church and the state’s briefs focus on a U.S. Supreme Court decision that
allowed Washington to exclude theology majors from public scholarship funds,
Locke v. Davey, 540 U.S. 712 (2004).

The
Locke court “focused especially on the minimal burden” that Washington’s exclusion policy
placed on the plaintiff’s “right to freely exercise his religion,” the state argues.

Similarly, DNR’s policy placed “no meaningful burden” on the church’s practice of
religion, the state says.

The church can still worship, teach and “even resurface its playground as it sees
fit,” the state argues.

Trinity argues that this “case is as far from
Locke as one can conceive.”

The church “sought to participate in a generally available public benefit program”
to protect kids “from cuts and bruises on the playground,” Trinity says.

But “
Locke rejected a free exercise challenge to compel a state to fund the religious training
of clergy,” the church says.

The ACLU’s Mach said the state’s case is even easier to make here because
Locke didn’t involve direct cash grants to churches.

The high court has never said a state can give such grants, Mach said.

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